Adscon, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1988

290 N.L.R.B. 501 (N.L.R.B. 1988)

ADSCON, INC.
Adscon, Inc. and Earl Morgan and Bobby Lee
Morgan, and Lloyd Parish Plumlee and Henry
L. Plumlee and James F. Muse and Randall
Gosseen, and Don Fox and Dean E. Herd
Adson , Inc. and United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada,
Local 598. Cases 19-CA-18435, 19-CA-18436,
19-CA-18437, 19-CA-18438, 19-CA-18439,
19-CA-18453, 19-CA-18454, 19-CA-18483,
19-CA-18557, and 19-RC-11401
July 29, 1988
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
CRACRAFT
On November 12, 1987 , Administrative Law
Judge Gerald A. Wacknov issued the attached de-
cision . The Respondent filed exceptions and a sup-
porting brief, and the Charging Parties filed an an-
swering brief to the Respondent 's exceptions. The
General Counsel filed a brief in support of the
judge 's decision and limited exceptions and a sup-
porting brief. The Respondent filed an answering
brief to the General Counsel's limited exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings," and
conclusions as modified , but not to adopt the rec-
ommended Order.2
' The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir . 1951).
We have carefully examined the record and find no basis for reversing
the findings.
In her limited exceptions, the General Counsel notes several inadvert-
ent errors in the judge's decision We correct the judge's decision as
follows . ( 1) The judge states that this case involves the unlawful dis-
charge of six individuals . As is evident from the remainder of the deci-
sion, the judge found that seven individuals were unlawfully discharged
and that the Respondent unlawfully failed to hire an eighth individual. (2)
The judge refers to "Gosseen" passing the welding test . The reference
should be to "Muse " (3) The judge states that Company President Saum
told employee Muse, "[Y]ou been going to the office complaining about
being harassed ... you haven 't seen harassment yet " In fact , Project
Superintendent Rick Lakey made this statement.
We note that the Respondent does not except to any of the judge's
8(a)(3) termination findings . Rather, the Respondent argues that the un-
lawfully terminated welders' (Tom Morgan , Bob Morgan, and Jim Muse)
reinstatement rights ceased because of their violation of code welding
procedures. We agree with the judge's finding that this defense is pretex-
ual and that any deviation from code was on express instruction of Rick
Lakey.
2 The judge recommended broad cease-and-desist language . However,
we have considered this case in light of the standard set forth in Hickmott
Foods, 242 NLRB 1357 (1979 ), and have concluded that the narrow
cease-and-desist language is appropriate. We shall modify the judge's rec-
ommended Order accordingly.
501
1. We agree with the judge that Hank Plumlee
was not a supervisor . However , we do not rely on
the judge's differentiation between Hank Plumlee's
status before and after May 15 , 1986 . Although the
Respondent asserts that Plumlee had the authority
to make hiring decisions , the record indicates that
Plumlee , as well as other employees, could sug-
gest persons for employment, but it fails to show
that the Respondent invested Plumlee with the dis-
cretion to make hiring decisions or to exercise in-
dependent judgment in any other area . We con-
clude that the record as a whole fails to establish
that Hank Plumlee was a supervisor before or after
May 15, 1986.
On July 1 , 1986, Hank Plumlee arrived at the
construction trailer at 6:30 a.m. As he entered the
trailer, President Saum said he had caught Randy
Gosseen pilfering company property that morning,
and that charges were being pressed . Plumlee
turned to leave the trailer to begin work and Saum
said , "Yeah , get out there and bust your ass and
... if you don't think you can handle the heat of
that ... just hit the fucking road ." Plumlee told
Saum not to "hard ass" him , and to fire him if that
is what he wanted to do . Plumlee then indicated he
was quitting by walking over to the desk and put-
ting down his keys. Saum asked Plumlee if he was
quitting, and Plumlee walked to the door. Saum
told Plumlee to leave the hardhat, and asked Su-
perintendent Lakey to go with Plumlee to remove
any of the Respondent's property from Plumlee's
pickup truck.
The judge found that new, albeit unspecified,
working conditions were imposed on Plumlee and
were intended to be so unpleasant as to cause him
to quit . The Respondent excepts to the judge's
finding that Hank Plumlee was constructively dis-
In her limited exceptions , the General Counsel notes that the judge
found the Respondent unlawfully threatened employee Gosseen with
arrest in retaliation for his union activity , as alleged in par . 6(g) of the
complaint The judge failed to include a remedy for this violation in the
recommended Order and notice. We shall conform the recommended
Order and notice with the judge's findings.
We agree with the judge that Parish Plumlee 's May 15, 1986 layoff
violated Sec 8(a)(3) To remedy this violation the judge ordered that
Parish Plumlee be made whole for any loss of wages or benefits resulting
from the discrimination , but failed to provide him with reinstatement
rights . It appears the judge decided that Plumlee's recall as a laborer for
a week in July satisfied the Respondent's reinstatement obligation. The
General Counsel excepts . We shall provide the traditional reinstatement
remedy and leave to compliance whether Parish Plumlee's job as a pipe-
fitter's helper existed at the time of his recall and, if not , whether his
recall as a laborer was substantially equivalent to his former position.
Regarding the representation case, we shall modify the judge 's recom-
mended Order to direct the Regional Director to open and count the
ballots of the six employees found to be eligible and, thereafter, to issue
the appropriate certification . Because the Respondent's objections are
overruled and the Union filed no objections , we will not set aside the
election results.
In the absence of exceptions , we pro forma adopt the judge's rulings
on the challenged ballots.
290 NLRB No. 63
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
charged in violation of Section 8(a)(3). We find
merit in the Respondent 's exception.
The Board has held that a constructive discharge
occurs when an employee quits because an employ-
er has deliberately made working conditions un-
bearable . Keller Mfg. Co., 237 NLRB 712 (1978).
Two elements must be proven to establish a con-
structive discharge . First, the burdens imposed on
the employee must cause , and be intended to cause,
a change in working conditions so difficult or un-
pleasant as to force the employee to resign.
Second, it must be shown that those burdens were
imposed because of the employee 's union activities.
Crystal Princeton Refining Co., 222 NLRB 1068,
1069 (1976).
We find that the facts fail to demonstrate that
the Respondent imposed conditions on Hank Plum-
lee that were so intolerable as to force him to
resign . Unlike the judge, we find that Saum 's state-
ment to Hank Plumlee-"Yeah, get out there and
bust your ass and . . . if you don't think you can
handle the heat of that . . . just hit the fucking
road"-although demeaning, did not change Plum-
lee's work circumstances . See Algreco Sportswear
Co., 271 NLRB 499 (1984). Saum's statement may
well be a threat to impose onerous working condi-
tions, but "[a] threat is not the equivalent of the
actual imposition of unlawful conditions of employ-
ment ; it does not in any meaningful sense render
the conditions of employment so intolerable as to
compel an employee to leave his job." Central
Casket Co., 225 NLRB 362, 363 (1976). Because we
cannot find that any new conditions were imposed
on Plumlee,3 we conclude that he was not con-
structively discharged and is not entitled to rein-
statement and backpay.
2. In her limited exceptions, the General Counsel
argues that the judge erred by not finding an addi-
tional 8(a)(3) violation because the Respondent
conditioned Jim Muse's reemployment on his drop-
ping his unfair labor practice charges . We do not
agree with the General Counsel that the Respond-
ent's offer to reinstate Muse on the condition that
he drop his unfair labor practice charges constitut-
ed a separate violation of Section 8(a)(3) of the
Act. Rather, we find that this statement was a con-
ditional offer of reinstatement, made in the context
of settlement negotiations with employee Muse.
Muse was free to accept or refuse this settlement
offer . He chose to pursue his rights under Section
8(a)(3) of the Act. The Respondent's conditional
settlement offer, however, does not satisfy its obli-
gation to offer the unlawfully discharged Muse full
and unconditional reinstatement , nor does the offer
toll the Respondent's backpay obligation.4
ORDER
The National Labor Relations Board orders that
the Respondent , Adscon, Inc., Renton , Washing-
ton, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interrogating employees regarding their own
union activity and the union activity of other em-
ployees.
(b) Threatening to discharge employees because
of their union activity.
(c) Telling employees that the Company will
prolong negotiations and will never sign a contract
with the Union.
(d) Threatening employees with a reduction in
wages if they vote for the Union.
(e) Threatening to contract out work if the em-
ployees vote for the Union.
(f) Creating the impression of surveillance of em-
ployees' union activity.
(g) Withholding pay increases because of the
advent of the Union.
(h) Threatening to close the fabrication shop if
the Union is voted in.
(i) Imposing more onerous working conditions
on employees because the Union was voted in.
(j) Telling employees that they will be blacklist-
ed because of their union activity.
(k) Refusing to hire employees because of their
union affiliation.
(1) Discharging and demoting employees because
of their union activity.
(m) Threatening employees with arrest in retalia-
tion for their union activities.
(n) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) To the extent it has not already done so, offer
Parish Plumlee immediate and full reinstatement to
his former job or, if such job no longer exists, to a
substantially equivalent position, without prejudice
to his seniority or any other rights or privileges
previously enjoyed.
(b) Offer Bob Morgan , Earl (Tom) Morgan, Jim
Muse, Don Fox, Randy Gosseen, and Dean Herd
a In this respect , we find the case is distinguishable from K & S Cir-
cuits, 255 NLRB 1270 (1981), cited by the judge, in which the respondent
actually imposed onerous working conditions on the employees found to
be constructively discharged.
4 Member Cracraft agrees with her colleagues that the Respondent's
conditional reinstatement offer did not satisfy its remedial obligations; she
finds it unnecessary to reach the issue of whether the offer itself violated
the Act
ADSCON, INC.
immediate and full reinstatement to their former
jobs or, in the case of Dean Herd , the job he
would have been hired for or, if such jobs no
longer exist , to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed , or that
they would have been entitled to, and make them,
and also Parish Plumlee , whole for any loss of
earnings and other benefits suffered as a result of
the discrimination against them , in the manner set
forth in the remedy section of the judge's decision.
(c) Remove from its files any reference to the
unlawful discharges and refusal to hire and notify
the employees in writing that this has been done
and that these actions will not be used against them
in any way.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payro 11 records , social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its main office in Renton , Washington,
and in all field offices and mail a copy of the notice
to each employee who was employed at the
Yakima Firing Center jobsite or the fabrication
shops, copies of the attached notice marked "Ap-
pendix."5 Copies of the notice , on forms provided
by the Regional Director for Region 19, after
being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent and
mailed to the employees immediately upon receipt
and maintained by Respondent for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered , defaced,
or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the Respondent's
election objections are overruled and this matter is
remanded to the Regional Director for Region 19
to open and count the ballots of John Sphuler,
Kevin Rye, Donald Fox, Lloyd Parish Plumlee,
Earl (Tom) Morgan , and Bobby Morgan and that a
revised tally of ballots be prepared and served on
the parties and the Regional Director shall issue
the appropriate certification.
6If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
503
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT interrogate employees regarding
their own union activity and the union activity of
other employees.
WE WILL NOT threaten to discharge employees
because of their union activity.
WE WILL NOT tell employees that the Company
will prolong negotiations and will never sign a con-
tract with the Union.
WE WILL NOT threaten employees with a reduc-
tion in wages if they vote for the Union.
WE WILL NOT threaten to contract out the work
if the employees vote for the Union.
WE WILL NOT create the impression of surveil-
lance of employees ' union activity.
WE WILL NOT withhold pay increases because of
the advent of the Union.
WE WILL NOT threaten to close the fabrication
shop if the Union is voted in.
WE WILL NOT impose more onerous working
conditions on employees because the Union was
voted in.
WE WILL NOT tell employees they will be black-
listed because of their union activity.
WE WILL NOT refuse to hire employees because
of their union affiliation.
WE WILL NOT discharge and demote employees
because of their union activity.
WE WILL NOT threaten employees with arrest in
retaliation for their union activity.
WE WILL NOT in any like or related manner
interfere with , restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
To the extent we have not already done so, we
will offer Parish Plumlee immediate and full rein-
statement to his former job, or if such job no
504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed.
WE WILL offer Bob Morgan, Earl (Tom)
Morgan , Jim Muse, Don Fox , Randy Gosseen, and
Dean Herd immediate and full reinstatement to
their former jobs or, in the case of Dean Herd, the
job he would have been hired for or, if such jobs
no longer exist , to substantially equivalent posi-
tions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, or
that they would have been entitled to, and make
them, and also Parish Plumlee , whole, with inter-
est, for any loss of earnings and • other benefits suf-
fered as a result of the discrimination against them.
WE WILL remove from our files any reference to
the unlawful discharges and refusal to hire and
notify the employees in writing that this has been
done and that these actions will not be used against
them in any way.
ADSCON, INC.
Martha A . Barron, Esq., for the General Counsel.
Judd H. Lees and Thomas H. Fain, Esgs. (Williams,
Kastner & Gibbs), of Bellevue , Washington , for the
Respondent.
John Burns, Esq. (Hafer, Price, Rinehart & Schwerin), of
Seattle, Washington, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge.
Pursuant to notice , a hearing regarding this matter was
held before me in Yakima, Washington, between 27 Jan-
uary and 12 March 1987 . The captioned unfair labor
practice cases were filed between 9 July and 29 August
1986 by the various named individuals and by United As-
sociation of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry of the United States and
Canada, Local 598 (Union).
Pursuant to a representation petition filed by the
Union on 1 May 1986 in Case 19-RC-11401 , an election
by secret ballot was conducted on 30 June 1986. The
tally of ballots reflects that of the approximately 12 eligi-
ble employees, 5 cast ballots for the Union , 3 cast ballots
against the Union, and 8 ballots were challenged. The
challenged ballots are sufficient to affect the results of
the election . Thereafter, the Respondent filed timely ob-
jections to the election . On 20 August 1986 the Acting
Regional Director for Region 19 issued a Report on Ob-
jection and Challenged Ballots and recommended that a
hearing be held to resolve the issues.
On 22 August 1986 the Acting Regional Director
issued an order consolidating cases, consolidated com-
plaint and notice of consolidated hearing, which consoli-
dated the unfair labor practice proceeding and the repre-
sentation proceeding for the purpose of hearing, ruling,
and decision by an administrative law judge . On 20 No-
vember 1986, the Board issued a Decision and Direction
sustaining the Acting Regional Director's determination
in the representation case.
The parties were afforded a full opportunity to be
heard, to call, examine, and cross-examine witnesses, and
to introduce relevant evidence. Since the close of the
hearing, briefs have been received from the General
Counsel, counsel for Respondent, and counsel for the
Union.
On the entire record,' and based on my observation of
the witnesses and considerations of the briefs submitted, I
make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, a State of California corporation with an
office and place of business in Renton , Washington, is
engaged in the construction business.
During the 12 months preceding the issuance of the
complaint , in the course and conduct of its business oper-
ations, the Respondent purchased and caused to be trans-
ferred and delivered to its facilities within the State of
Washington goods and materials valued in excess of
$50,000 directly from sources outside the State.
It is admitted , and I find, that Respondent is, and has
been at all times material, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union is, and has been at all
times material, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are wheth-
er the Respondent has committed various unfair labor
practices during the course of a union organizational
campaign , including the discharge of six individuals, in
violation of Section 8(a)(1) and (3) of the Act. Further,
challenged ballot and election objection issues in the con-
solidated representation proceeding are also resolved.
B. The Facts
The Respondent, a construction contractor, contracted
with the Army Corps of Engineers (Corps of Engineers)
to perform work at the Yakima Firing Center , an army
installation near Yakima , Washington. The job involved
the demolition and replacement of an outdated heating
system that supplies heat and hot water to approximately
71 barracks and other buildings at the base.
I The General Counsel 's unopposed motion to correct transcript is
granted and is hereby made a part of the record Also, the General Coun-
sel's motion to correct It. Exh . 20 is granted , and the quality control re-
ports submitted therewith, dated 12 November 1985 and 2 May 1986, are
substituted in place of those two reports introduced at the hearing.
ADSCON, INC.
On 29 April 1986 ,2 following an organizing meeting
on 23 April, Union Business Manager Glenn Hickman
sent the following letter to the Respondent 's headquar-
ters in Renton, Washington:
A majority of the pipefitter/welders and pipefit-
ter helpers on your project at the Yakima Firing
Center have designated Local 598 as their repre-
sentative for collective bargaining.
I am writing to request recognition and begin
bargaining.
Hank Plumlee , a journeyman pipefitter, worked for the
Respondent on several Corps of Engineers projects and
in various capacities since 1984 . In January 1986 he was
transferred from the Bonneville Dam project in Bonne-
ville, Oregon , to the Yakima Firing Center (the base)
where he remained until 1 July as pipefitter foreman.
Plumlee testified that on 1 May, Rick Lakey , project
superintendent , asked Plumlee to go for a ride with him
in Lakey 's pickup. Lakey parked the truck in the con-
struction area and told Plumlee that Richard Saum, Re-
spondent's president and Lakey 's uncle, had called from
Seattle and said that the Company had received the
aforementioned letter from the Union . Lakey asked
Plumlee if he knew anything about it . Plumlee said no.
Lakey said , "Well, you know how Saum feels about the
union . . . he's going to come over here and . . . fire ev-
erybody . . . including you." Plumlee asked , "Well, are
we fired or what?" Lakey replied , "No, he 's going to
come over tomorrow and do it himself." Lakey said he
believed that Bob Morgan would favor the Union but
that Tom Morgan3 would not. Lakey asked whether
Randy Gosseen was Union and Plumlee said "Yes, he is
union." Lakey asked whether Plumlee 's son , Parish
Plumlee, might have called the Union , and Plumlee said
he doubted it.4
Hank Plumlee testified that during the conversation
Lakey engaged in further speculation regarding the
union sympathies of certain other plumbing employees.
Lakey doubted whether Roger Miller or Bruce Roybal
would bring the Union in, but said that Don Fox5 had
been complaining a little bit to Bruce Roybal about not
making journeyman 's scale. Lakey asked if Plumlee
would try to find out and let him know who had called
the Union and signed cards, and said that Saum would
be at the base the following day. Lakey then drove
Plumlee back to where he had been working and
dropped him off.
On the next day, 2 May, Lakey asked Plumlee if he
had learned who called the Union . Plumlee said he had
not heard anything . Lakey said he had talked to Saum.
He again told Plumlee that Don Fox had been complain-
ing to Roybal about not being paid journeyman's pay.
He said that he believed Fox had to be the one causing
2 AI I dates or time periods are within 1986 unless otherwise specified.
' Bob Morgan and Earl Tom Morgan (Tom Morgan), brothers, were
welders on Plumlee 's crew.
4 Gosseen and Parish Plumlee were pipefitter helpers on Plumlee's
crew.
5 Bruce Roybal and Don Fox were plumbers on Roger Miller's crew.
505
all the trouble and that he was going to fire Fox that
day.
Later that day Fox was laid off by his supervisor,
Roger Miller, who told Fox that he was being temporar-
ily laid off for about a week or so . The layoff slip he was
furnished states : "Temporary layoff. "e
Respondent maintains that Fox 's layoff was caused by
a temporary quarantine of certain barracks in which the
plumbing crew , including Fox, had been working. The
quarantine was imposed by the Corps of Engineers due
to the discovery of asbestos particles in mattresses.
A Corps of Engineers ' quality assurance report, dated
28 April-2 May , shows that whatever problem existed
in this regard had been resolved . Thus the report ex-
pressly states that "Conditions are now we're to work in
bldgs. as long as not in body contact with mattress. Re-
gardless of signs, etc."
Roger Miller , plumbing crew foreman , testified that
even though access to some of the buildings had been
curtailed by the asbestos problem , nonetheless there was
work to be performed in the building the crew was then
working in at the time he laid off Fox , and there was
access to one other building that the crew had not yet
started.
Tom Morgan , a welder, was also discharged on 2
May.7 Lakey advised Plumlee that Morgan was being
laid off, and told Plumlee to sign Morgan's layoff slip,
which had previously been prepared by Lakey . The slip
Morgan was furnished states : "Temporary layoff."8
Morgan testified that on 2 May, Lakey told him he
was to be laid off for "one week and one week only,"
and that he was to report to work in a week . Morgan
reported for work a week later , as instructed , but was
told to go home and to thereafter keep checking in by
telephone . Three weeks later when he checked in he was
told by Bob Harvey , Respondent 's quality control in-
spector, that he was no longer needed.
Plumlee testified that at the time of Morgan 's layoff
Lakey said the layoff could be a week or even less.
Plumlee further testified that during the months of May
and June there was fabrication welding work to be done
at the base sufficient to occupy the time of all three cer-
tified welders, namely , Bob Morgan , Tom Morgan, and
Plumlee.
Lakey testified that Morgan had been hired only to
assist in the prefab work and that this had been virtually
completed on 2 May . Therefore, he told Plumlee the fol-
lowing:
I just told him that we didn't have no access to any
more buildings and that we was going to have to
' However , the layoff slip submitted by Respondent during the course
of the investigation states : "Temporary layoff-ran out of work; may
recall."
7 Tom Morgan began working for the Respondent on 16 January. He
was laid off for a week and a half in late January , and was also laid off
on 24 February for about 4 weeks. His last period of work apparently
began in late March and he worked steadily until his final layoff on 2
May.
' Plumlee had never been asked to sign any previous layoff slips. The
slip submitted by Respondent during the course of the investigation
states : "Temporary layoff; ran out of work."
506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lay him off and Hank 's comment at that time was
that he was only planning on him [Plumlee] and
Bob Morgan doing the condensate line and that
since the prefab was done that he was planning on
laying him [Tom Morgan] off permanent at that
time.
Plumlee denies that this conversation occurred and testi-
fied that, in fact, he suggested to Lakey that Tom
Morgan not be laid off because there was other work to
do.
About 13 May, Saum said he wanted to talk to Plum-
lee. Saum said he had talked to his lawyer and it was
perfectly legal to solicit Plumlee 's vote . He asked if
Plumlee knew any of the guys who had signed cards, or
whether they had any union meetings . Plumlee answered
no. Saum asked about Plumlee 's son, Parish , and Plumlee
said he was sure Parish had not signed a card . Saum said
he knew the Morgan brothers were against him from the
start and "were locked into the union tight as hell." He
said that both Tom and Bob Morgan were "not worth a
shit" and that he was going to start playing hardball and
was going to send Bob Morgan into the shop on Rudkin
Road9 to keep an eye on him , and move Jim Muse from
the shop to the jobsite to increase production . He said,
according to Plumlee , "Morgan'll have a job but he'll
have a hell of a time keeping it."
Saum told Plumlee that the Union would screw up the
job and that "I'm going to fight like hell to keep it out of
here"; that he was nonunion because he chose to be; that
the matter could be negotiated for years and tied up in
court ; that it was not uncommon to go for a couple of
years' negotiations and that the job would be long com-
pleted ; that they could cut off his right arm before he
would sign a contract ; that if the employees went Union,
they would take a cut in pay , and the wages would go
down; that Plumlee would be sitting on the bench like
the rest of the welders; and that there was a lot of work
at the firing center and that he was going after the work,
but the guys who were against him would not be part of
it. Plumlee interrupted Saum and said , "Before you tell
me much more, I have not really fully decided which
way I'm going." Saum then walked away.
Jim Muse began working for Respondent at the end of
January in the fabrication shop on Rudkin Road. He was
hired by Al Lakey, fabrication shop foreman and Saum's
brother-in-law and Rick Lakey's father . Muse primarily
welded pipe supports and also mechanical stands but was
not a certified welder.
About the first of May, Al Lakey told Muse that some
of the guys at the base were wanting to go Union. About
a week later Muse overheard a phone conversation be-
tween Saum and Al Lakey regarding whether Muse
could certify as a welder at the base . Muse asked what
was going on and Lakey said , according to Muse, that
they were "having problems out at the base ." Lakey
asked if Muse wanted to try to pass a welding certifica-
tion test . Muse said yes.
In mid-May, Lakey asked Muse "how big of an
asshole [he] could be," and went on to explain that they
wanted to get Bob Morgan down to the fabrication shop
and wanted to know whether Muse "can piss him off
enough to get him to quit." Lakey said , however, that
this would not happen until Respondent 's attorney
okayed whether the Company could get away with it. t o
Lakey asked Muse and another employee what they
thought of the Union . Muse said he did not have any
plans to fool around with the Union . Muse testified that
Lakey, on more than one occasion , said if the Union did
come in no one in the fabrication shop would have a job
because the Company would subcontract the work.
Later, Muse asked Lakey what the lawyer said about
the plan to get rid of Bob Morgan . Lakey said that the
matter worked out well as the Corps of Engineers "shut
us down on the line and so we just laid him off."
Bob Morgan and Parish Plumlee were laid off on 15
May by Bob Cole . I t Hank Plumlee had been given no
prior notification of their layoffs .' z Respondent main-
tains that the suspensions were due to a 14 May phone
call to Saum from Terry Childers, project engineer for
the Corps of Engineers, instructing Saum to suspend all
work on both the steam and condensate lines . Saum testi-
fied that Childers told him that the suspension was due
to the fact that it had been discovered that the insulation
requirements on both lines were not sufficient to protect
the lines from freezing weather in the winter months,
and that the intention was to insulate both the steam and
condensate lines with thicker insulation than had been
previously scheduled. Childers told him that a letter
would be forthcoming in 2 weeks with further instruc-
tions . Saum testified that as a result of this instruction
from Childers , all work on the steam and condensate
lines, and the fabrication of poles in the fabrication shop,
was suspended for 2 to 3 weeks , after which time the
problem worked itself out and the work continued.
A confirmation letter of the foregoing phone call, de-
noted as Serial Letter No. 31, dated 16 May, was sent by
the Corps of Engineers to the Respondent , as follows:
In accordance with CC-7, SUSPENSION OF
WORK of your contract, you are directed to sus-
pend work associated with removal of insulation on
the exterior steam line . All other work associated
with the steam line may continue.
9 The Respondent maintained a fabrication shop on Rudkin Road in
Union Gap, Washington , some 8 miles from the base , where various
items were fabricated , particularly the pipe supports or poles from which
the condensate and steam lines were to be suspended . The steam lines
bong steam into the buildings . The condensate lines return the water to
the boilers. Respondent's contract provided for the replacement of some
1200 existing wooden poles with metal pipe supports , and also for the re-
placement of approximately 21,000 feet of condensate line. Also, the Re-
spondent was to remove the existing insulation from 21 ,000 feet of steam
line.
10 The law firm currently representing Respondent was retained subse-
quent to the date of the alleged unfair labor practice.
11 Cole had replaced Rick Lakey on 12 May as project superintendent
at the base, and Rick Lakey became designated as general foreman. This
change was at the direction of the Corps of Engineers because it was felt
that Rick Lakey was spending too much time in the field with the em-
ployees and was not readily available in the Respondent's office trailer at
the base . Therefore, Cole was brought on to apparently perform the ad-
ministrative duties so that Lakey could remain in the field.
12 Their layoff slips, signed by Cole, state - "RIF due to suspension of
work."
ADSCON, INC. 507
This suspension is necessary due to a re -evalua-
tion of the insulation requirements on the exterior
steam line . All other contract work may continue.
You will be notified when the suspended work may
continue.
If you have any questions regarding this direc-
tive, please contact the Ft. Lewis Resident Office at
(206) 967-6937.
Saum testified that as a result of this steam line suspen-
sion order it was not possible to continue with "all other
contract work," even though the Corps of Engineers
said the work could continue . Thus, Saum testified that it
was necessary to know the dimensions of the insulation
on the steam lines in order to be able to ascertain the
proper dimensions and placement of the poles that sup-
port both the steam and condensate lines, and that weld-
ing on the condensate line could therefore not continue.
Therefore, Bob Morgan , who welded on the condensate
line, Parish Plumlee , who worked in the mechanical
rooms , and two laborers, who worked on the crew in-
stalling the pipe supports, were laid off.
Hank Plumlee testified that he was never aware of any
suspension of work by the Corps of Engineers, and that
he continued welding on the condensate line until Jim
Muse came out from the fabrication shop and began
welding , infra. According to Plumlee , and contrary to
Saum 's testimony , there was no slowdown or suspension
of any work on the condensate line during this period.
At the time of the layoff, Parish Plumlee was perform-
ing plumbing work in the mechanical rooms located in
each barrack . This work was independent of the work
being done on the outside lines . Plumlee was replaced,
apparently the following day, by Kevin Rye. Rye testi-
fied that he thereafter worked steadily, without interrup-
tion , in the mechanical rooms . The record discloses that
two laborers were laid off on the same day, Thursday, 15
May, ostensibly because of the shutdown. However, on
Monday , 19 May, and Wednesday , 22 May , two new la-
borers were hired . Richard Alvord , a laborer hired on 22
May, testified that he assisted in pouring the concrete
bases for the poles . Brian Longmire , a laborer hired on
19 May , testified similarly . James Muse testified that his
work in the fabrication shop , where he was primarily en-
gaged in the fabrication of pipe supports , did not slow
down.
Muse did not pass the first welding test , and his sample
weld or "coupon" was rejected by the independent shop
that performs tests on welds and certifies welders. Prior
to making another coupon , Al Lakey told him that
Lakey would guarantee that he would pass the test be-
cause if he had any more problems Saum , who was a
certified welder , would come up and take the test for
him. Gosseen passed the welder 's certification test on the
second attempt about the end of May. Shortly thereafter,
he was told by Saum that Saum had to work Muse into
the base slowly so that the Union would not "get on his
case about just sticking a brand new guy up there after
they'd laid Bob Morgan off." He said by the first of
June, Muse should be working there full time and would
be receiving full journeyman 's scale. Muse was curious
about his test results and Saum said, "Who gives a damn,
you passed ." Later that day Muse received a phone call
from Rick Lakey who said he was not going to bring
Muse out to the base that week because he (Lakey)
would not be there and he did not want Muse and Plum-
lee together by themselves.
Muse was permanently transferred to the base about I
June as a welder . On that day , Lakey told him not to ask
Plumlee any questions and to stay away from him. He
further told Muse that if Muse needed help or anything
he was to call Lakey on a radio that Lakey would pro-
vide for him and Lakey would come down and help
him. Half an hour later Muse , who had never done this
type of work, was looking at some welds and asked
Lakey, "Well, what do I do?" Lakey said , "You're the
welder. You tell me. That's your job." He then told
Muse to do whatever Plumlee told him to do.
Muse told Plumlee he wanted to watch him weld.
Then Muse asked Plumlee if he would watch Muse
weld. Plumlee gave Muse, who was having some prob-
lems, pointers . During the first few days Lakey came by
and inspected Muse 's welds . Lakey said he was not very
impressed and said they would have to get better.
During a subsequent conversation on a later date,
Lakey again told Muse to stay away from Plumlee.
About 19 June the Company held a meeting of the
unit employees. t 3 Muse testified that Saum said he knew
there had been a union meeting the night before "be-
cause his spies had let him know."" He said all he had
to do was negotiate in good faith and "he could stall it
for two years, and by that time the job would be over
and everybody would be gone ." He said that the em-
ployees could go somewhere else if they did not like
working for him, but he did not want the Union to have
anything to do with the Company . He said there were
three or four people who deserved raises but he could
not grant them raises because it would look like he was
trying to buy their votes. Apparently during a side con-
versation Saum asked Muse, "Well, I heard you were
going to vote for the union ." Muse said no, he just went
to the meeting to hear both sides.
Hank Plumlee gave the following account of Saum's
remarks at the meeting : Saum said that he heard the
Union had a meeting the night before, and that he heard
there had been a lot of carrots dangled in front of guys'
noses . He said that if the Union won the election it
would only give the Union the opportunity to sit at the
bargaining table with the Company , and that it would
not change the job a bit . He said the matter could be tied
up in court for a couple of years , and that the employees
would definitely take cuts in pay . Saum had a sheet of
paper that compared union scale with the wages the em-
ployees were then making , and said there were some em-
i3 On I I June, the Regional Director approved a stipulation for certifi-
cation upon consent election defining the appropriate unit as follows-
All pipefitters, pipefitter welders , and pipefitters helpers working for
the Employer within the jurisdiction of United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefitting Industry
Local 589, excluding all other employees, guards, and supervisors as
defined in the Act.
14 Those attending the union meeting were Hank Plumlee, Parish
Plumlee, Don Fox, Randy Gosseen , Jim Muse, Randy Anderson, and
Kevin Rye.
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees who had been under consideration for raises, but
because of the union deal the Company could not give
out raises then because it would look like the Company
was trying to buy their votes . He said the Company was
looking into an insurance program for the employees.
Sawn said the Union would not do anything but screw
the job up and that he knew there were problems, but
that they were working on them . He said there was a lot
of work out there at the firing center that the Company
was going to bid.
Plumlee testified that Al Lakey, who also spoke at the
meeting , pointed at some of the employees and said, "I
know a couple of you guys in there at the shop . . . they
were dangling carrots in front of your noses and you
better take a real hard look at this because . . . that shop
could be closed down if this thing goes."
The election was held on 30 June. Immediately before
the election , which was held at the jobsite on the base,
Gosseen observed three employees from the Rudkin
Road fabrication shop drive up. When they got out of
the car they were approached by Al Lakey. Gosseen
heard Lakey tell them, "Now, remember, if you vote for
this union you 're going to be out of a job." Gosseen then
told Lakey that this was not the place to be politicking.
Immediately after the election , in which the Union
prevailed , Rick Lakey told Gosseen and Kevin Rye that
he wanted to have a meeting with them . Gosseen testi-
fied that Lakey was shaking and acted nervous or upset
and said, "This is the way it 's going to be ... from now
on you're going to be working at 6:30 , you're not going
to pick up your tools until 3 :00... no more coffee and
soda pop on the job except at lunchtime . No more radios
on the jobsite . . . and production will increase." He
told the two employees that they were no longer work-
ing for Hank Plumlee but rather were working for
Roger Miller, and that if they were caught out of their
work area , they would be terminated.
Gosseen testified that the practice prior to that day
was that the employees would get into the trucks near
the Respondent 's construction office and begin driving to
the actual worksite at 6:30 a.m., and they usually picked
up their tools 10 minutes before the 3 p.m. quitting time.
There had been nothing said prior to that time regarding
coffee , soda pop, and radios , and employees were permit-
ted to have soft drinks or coffee while they were work-
ing. Further, there had never been a rule about being
outside their immediate work area, and the employees
would periodically leave their work area to pick up ma-
terials needed on the job.
Lakey returned about 15 minutes after the aforemen-
tioned conversation and, according to Gosseen , told Rye
that he would no longer be working with Gosseen, and
took Rye inside the barracks . Then Plumbing Foreman
Roger Miller came out with Randy Anderson and told
Gosseen that he would thereafter be working with An-
derson . Anderson knew nothing at all about the work in
the mechanical rooms and did not even know how to
run a pipe-threading machine , which was the primary
tool. Miller said he had been instructed to tell Gosseen
that Gosseen and Anderson were required to complete
two mechanical rooms a week . Gosseen said he would
be unable to do that with a new man who did not know be unduly critical of Muse's work performance.
the tools, and that he would have to train Anderson as
he had trained Rye. Miller said he understood that but
"that's the word I got from above."
On 30 June, prior to the election , Lakey told Muse
about some changes in the work and helped Muse move
some pipe . Lakey told Muse that he "better hope the
union doesn 't go through or you're going to be out of a
job."
Immediately after the election Lakey told Muse that
he could not leave his immediate work area to get parts,
that he would be on location working at 6:30 a .m. rather
than arriving on the jobsite at 6:30 , and that he would
not pick up his tools until 3 p.m. Prior to this time Muse
had begun picking up his tools about 2 :45 p.m . Also, at
that time Lakey furnished Muse with a radio , as he had
told Muse he would do about 1 June , so that Muse could
contact Lakey if he needed any help.
Shortly thereafter Saum started berating Muse about
not leaving a 1/16-inch gap on his socket welds. Later
he told Muse, "You been going to the office complaining
about being harassed . . . you haven't seen harassment
yet." 1 s He told Muse that he (Saum ) would provide him
with a ledger book to keep a record of his welds, and
Muse would make 18 to 20 welds a day or he would be
terminated . There had never been a welding quota
before.
The next day , 1 July, Gosseen arrived at the jobsite at
approximately 5:30 a .m., although work did not begin
until about 6:30 a . m. Gosseen testified that he arrived
early because he was nervous about the job as a result of
the aforementioned quota he was expected to meet with
Randy Anderson , an inexperienced person, and believed
he was being set up to be dismissed for lack of produc-
tion . He sat in his truck and waited awhile and then
began looking through the nearby junk pile for valves
and strainers , which were to be salvaged from the old
piping and reused in the mechanical rooms.
Saum drove up and stopped . Gosseen said "Good
morning." Saum asked what he was doing and Gosseen
told him that he was looking for valves and strainers.
Saum asked , "What have you been stealing?" Gosseen
said he had not been stealing anything and opened the
door of his pickup and told Saum to search it. Saum
glanced inside the pickup and glanced into the bed of the
truck and said, "Well, I don 't see anything , but we've
been having these poles come up missing and . . . I'm
sick and tired of these thefts and I 'm going to get the
FBI and investigate these thefts."
Saum drove to the Military Police (MP) station and
told the MPs he wanted to swear out a complaint. After
doing so, Saum left and went back to the construction
trailer. Gosseen, who had followed Saum to the MP sta-
tion, told the MPs that there had been a union election
the day before, which the Company lost , and that Saum
was looking for a reason to discharge Gosseen . The MPs
said they had no reason to detain him any further, and
that he could go back to work . Gosseen told them that
he did not want to go back until they searched his truck,
16 Muse had complained about his treatment by Lakey, who seemed to
ADSCON, INC.
which they did. Nothing was found. Before Gosseen got
back to the construction trailer , he met Plumlee, who
was driving down the road. Plumlee waved him over,
and asked what happened . Plumlee told Gosseen that
Saum had told him, "We caught your fucking buddy,"
that Gosseen had been caught stealing , that Saum was
going to press charges, and that Gosseen was going to be
fired.
When Gosseen walked into the office, Saum told him
to pick up his check. Bob Harvey gave him a separation
notice that states that Gosseen was discharged for pilfer-
ing property belonging to the Government and to Re-
spondent.
Plumlee testified that when he got to the construction
trailer at 6:30 that morning , Saum said , "Well, Hank, I
got your fucking union buddy out here pilfering around
this morning . . . and I 've got his ass down at the MP
station and I'm pressing charges on him ." Plumlee asked
who he was talking about , and Saum said Randy Gos-
seen . Plumlee asked , "Well, what was he doing?" and
Saum said , "He was pilfering through my stuff."
Plumlee proceeded to leave the construction trailer to
go to work and Saum said , "Yeah, get out there and bust
your ass and . . . if you don't think you can handle the
heat of that . . . just hit the fucking road ." Saum also
said that if Plumlee could not take the heat, he should
stay out of the kitchen. Plumlee told him not to "hard-
ass" him , and said if Saum wanted to fire him, then fire
him, but get off his back. Then Plumlee decided that he
could not tolerate that harassment and laid the keys to
the Respondent 's pickup on the desk . Saum asked, "Are
you quitting Hank . . . are you quitting?" Plumlee did
not say anything, and as he started to walk back out the
door, Saum told him to "leave the fucking hardhat."
Then Saum directed Lakey to accompany Plumlee to
Plumlee's pickup and look through the personal things
he was taking. Plumlee then left the site.
On the morning of 1 July, Lakey asked Muse if he saw
some undercut on some welds Muse had made. Muse
said yes . Saum , who was present , said he was suspending
Muse for failing visual examination of his welds. Muse
asked why Saum did not do this 2 weeks ago when the
line was hydrotested.' a Saum said he was not worried
about it then or did not have the time . Saum asked why
he was using 5-P rod for all three passes, infra, and Muse
said that Plumlee told him to, and he had been told by
Lakey to do what Plumlee told him.
On the way back to the office Lakey told Muse that
Gosseen had been caught stealing and that they threw
him in jail . Muse asked where Plumlee was and Lakey
said , "We got rid of him, too." Back at the office Saum
told Muse he was being suspended for failing visual ex-
amination of his welds. Saum said that he could go back
to the fabrication shop at his old rate of pay, and could
recertify as a welder on his own time and expense, and if
there was an opening at the base then they could talk
about reinstating him. Muse said he knew that Saum was
mad because Saum could not buy his vote and that his
vote was not for sale . Saum started swearing at him and
16 This particular line had previously been inspected and hydrotested
and was found to be satisfactory.
509
said , "You're goddamn right I'm mad . . . I'm not going
to send you to school here and pay you 1100 bucks a
week." Lakey repeatedly asked Muse whether he wanted
to go to work at the shop and would accept the job,
which was at considerably lower pay , and stated that he
had to call his dad, Al Lakey, at the shop and let him
know. Muse accepted the offer of the job at the shop.
Muse walked in the front door of the shop and Al
Lakey said he heard Muse was looking for a job. Muse
said , "You guys are going to play hardball , huh?" Lakey
said , "You're goddamn right. You guys started this union
bullshit." Muse said he did not start any of it. Lakey
said , "Well, you're involved in it and now you're going
to pay for it." Lakey said he had work for him at $11.30
an hour.
On the next day, 2 July, Lakey said he only had labor-
ers' work for Muse at $8.77 an hour and asked if he
wanted the job. Muse said yes . Muse finished a job at I1
a.m. that Tuesday and asked Lakey what else he wanted
done . Lakey said there was no more work . He gave
Muse his check and told Muse to call him in a week.
Muse called the following Monday , and Lakey said he
had no work for him . He also said that Muse would be
getting a letter explaining why he would no longer be
working for the Respondent.
On 2 July, Plumlee remembered that he had not
turned in the keys to the storage trailer at the base and
that he also had several acetylene and oxygen bottles at
his home that he used when doing 1-day jobs for Re-
spondent away from the base . Fearful of the threats
Saum had made against Gosseen , Plumlee anticipated
that Saum would also accuse him of stealing . He, there-
fore, took the items to the local police department with
the intention of delivering them to the Company at a
later date when he got a chance . Later that day he got a
call from Saum , who apparently had been notified about
the bottles by the police , pursuant to Plumlee's request.
Plumlee explained that he had kept the bottles at his
home because he needed to have the equipment available
when he was assigned work at other jobsites. Saum said
he would probably have the sheriff waiting for Plumlee
when he came to deliver the bottles to the Respond-
ent."
Saum then asked , "Why'd you bring this union shit
down on me?" Plumlee said, "I didn 't; you brought it
down on yourself by not taking care of the job." Saum
said the Morgan brothers were professional organizers.
He said , "I hope you and the union get what you want
out of this thing . . . I've already talked to nonunion
contractors . . . you won't work another nonunion job."
He told Plumlee, "You're going to end up losing about
$25,000... over this," and he repeated that he 'd cut his
right arm off before he would sign a contract. He then
told Plumlee that Plumlee would never work for him
again.
17 Respondent does not dispute Plumlee's testimony that he had been
given permission to keep the bottles at his home as a convenience and
that Respondent had been aware of this. Saum did not carry out his
threat to have the sheriff waiting, and Respondent does not maintain that
Plumlee had done anything improper.
510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Then Saum asked him why he changed the welding
procedure, below . Plumlee replied that he did not have
authority to change the welding procedure on the job
and had not done so . Saum said , "Well, we found some
welds out here . . . where you were using 5-P rod .. .
in violation of the contract ." Plumlee said he was doing
what he was told to do by Rick Lakey.
On the following day, 3 July, Respondent sent letters
to Plumlee, Muse, Bobby Morgan , and Tom Morgan re-
garding their welding on the job . The letter to Plumlee,
signed by Bob Harvey , Respondent 's quality control in-
spector, is as follows:
Our employment records indicate on the morning
of July 1 , 1986, at 6 :30 A.M . you voluntarily quit
and left the project on your own volition.
We also note on July 2 , 1986, at 2:30 P.M. you
returned all company tools and equipment per the
enclosed inventory list. If this inventory is not cor-
rect, please let me know.
Shortly before your departure , I was investigat-
ing the welds on the new schedule 80 condensate
piping installed throughout the courtyards between
4th and 6th Avenues . It is apparent you and the
other welders directly under your daily supervision
changed the welding procedures for this work. Spe-
cifically, the pipe has been welded using the Lin-
coln 5-P electrode for the entire three-pass weld ap-
plication.
As of this date, all welds have been identified and
accounted for. The welds were made by yourself,
Jim Muse , Bob Morgan and Earl [Tom] Morgan.
To complete my Quality Control Report to the
Government, I need your explanation as to why
you arbitrarily changed our welding procedure
without permission from my office.
Hank, this is a serious matter . Think it over care-
fully and give me a collect call soon to discuss this
further . Adscon will correct the welds to satisfy our
Contract requirements as I intend to fulfill my obli-
gations to the Government as this Company 's Qual-
ity Control Officer for this project.
If you take exception to this letter in any form,
you are welcome to come out to the project imme-
diately and walk the condensate line with me. I will
show you the welding work performed by yourself
and your crew . You are also encouraged to bring
your entire crew for definite identification of indi-
vidual welds if you would like.
I want reasons why this procedure was changed.
You and your creware professionals, you know
welding procedures and the ASME code-why did
you do the work differently?
Plumlee sent the following reply:
In response to your letter written 7-3-86 regarding
me changing the welding procedure at the Yakima
Firing Center, as I told you on the phone I had
nothing to do with changing the procedure. As a
working foreman I only followed orders from the
job superintendent Rick Lakey. We were all told to
use 5-P rod because it was faster and clean -up time date May 8, 1986.
on welds were quicker . I am qualified on both 5-P
and 7018 rods and was not responsible for any pro-
cedure changes . Every welder on the job was told
the same thing by Rick Lakey (Job Superintendent).
There was never any comments made counterdict-
ing [sic] this by Adscon Q.C or Corp of Engineers
compliance officer until after my dismissal by
Adscon Inc.
The letters to both Bob and Tom Morgan, signed by
Saum are identical , as follows:
Our records indicate on May 15 , 198618 you
were laid off on a temporary basis due to lack of
work at the time.
It is our intent to start recalling welders for this
project in the near future.
Please be advised we have found several welds
that you have completed that are not in conform-
ance with the welding procedures established for
this project.
Before your employment can be reinstated, we
are investigating the reasons why you changed your
welding procedure . For further details, you should
contact Hank Plumlee.
In the meantime, your re-employment with this
company is under suspension.
Both Morgan brothers replied as follows:
I have received your letter of July 3, 1986. The
statement that some of my welds were not in con-
formance with procedure is untrue . All welds I did
were in accordance with company policy and were
approved , as stated by the Superintendent.
I am ready, willing and able to resume working
and have been ready, willing and able to resume
working since my improper layoff.
The letter to Muse , signed by Saum , is as follows:
Our records indicate on July 1 , 1986, you were
suspended from work for violating the welding pro-
cedure you were qualified for. In addition, you
failed a visual examination for severe undercutting
on several welds we inspected . As you recall, the
welds in question are located in 4th Avenue be-
tween Poles 942 and 1002.
Your reinstatement with Adscon as a journeyman
certified welder is conditional dependent upon your
requalification by test under the same established
welding procedures , with your statement explaining
why you changed your welding procedures on
these welds.
We will look forward to your immediate re-
sponse. In the meantime, your employment with
Adscon is suspended until further notice.
On 24 July, Muse responded as follows:
18 The letter to Tom Morgan, who was laid off earlier, contains the
ADSCON, INC.
Upon request of your letter , I have retested and
passed . Enclosed is a copy of my test results.
In regards to the welding procedure in question,
Rick Lakey did not explain or give me specs or
procedures for the job . He stated , do it any way
you want . Then he said do it like Hank , so I asked
Hank and he said Rick told him to use 6010 on the
filler and cap, because it was faster . I did what man-
agement told me to do and my foreman.
After two weeks I asked Rick Lakey if I could
switch to 7018 Hi-Lo , because thats what I qualified
with and I could do a better job, he said do it any
way you want.
I will expect a reply on being reinstated as soon
as possible.
Thank you.
About 28 July, Muse received a call from Saum. Saum
asked why Muse changed the welding procedure. Muse
said that Lakey told him to do it the way Plumlee did it,
and that Plumlee told him to do what management told
Plumlee , namely that 5-P was to be used for all three
passes . Saum said that Lakey was not a welder and Muse
should not have listened to him.
Saum went on to say that he was satisfied with Muse's
explanation and if he would drop his charges with the
NLRB he could have his job back. During the conversa-
tion Muse asked why Lakey had been giving him (Muse)
such a hard time on the job. Saum said that Lakey was
retaliating because he thought Muse was going to vote
for the Union, and that Lakey had seen Plumlee and
Muse associating with each other, riding home together,
and that was the only way Lakey knew to get even.
Saum said , "You're probably the only clean welder out
there because you didn 't know any better ... you were
used by Hank [Plumlee] and the union and the Morgan
boys." Muse said he would think about Saum 's offer to
withdraw the NLRB charges.
One week later Muse phoned Saum and said he would
accept the offer to return to work but would not drop
his charges against Respondent with the Board. Saum
said no . On 21 August, Muse wrote Saum a confirmation
letter of this conversation , as follows:
On or about the 28th of July 1986 , you received
a call from me concerning your earlier phone call
with my wife . In this conversation we talked about
several things, the one in question was concerning
my re-employment with Adscon . You stated and I
quote, "I'll give you your job back if you drop your
charges against the Company ." I stated let me think
about it for a week and if I want the job I'll call
back . One week later I called and stated I will
come back to work , but I will not drop my charges.
You stated and I quote , "If you don't drop your
charges you can't come back to work ." I stated I
would not come back to work on those conditions.
I await your response.
Respondent 's attorney replied to Muse on 27 August
as follows:
511
The Company has forwarded your letter of
August 21, 1986 regarding its settlement offer of re-
employment . The National Labor Relations Board
recognizes and, indeed , encourages the parties to
any unfair labor practice proceeding to engage in
informal efforts to settle a dispute . You have alleged
that you were improperly laid off, the Company of-
fered to reinstate you to settle that unfair labor
practice charge . In your letter of August 21, 1986,
you have declined that offer. As a result, the offer
of reinstatement is no longer available.
Fox was called back to work by Rick Lakey on 8
July. Fox began working on Roger Miller 's crew with
five other employees . Fox testified that Miller made him
work by himself on the other side of the barracks for
about a week and a half, and that none of the other em-
ployees would speak to him . Miller laid him off again on
24 July.
Dean Herd , a certified welder, went to the base look-
ing for a job on 7 July. Bob Harvey gave him a job ap-
plication . Bob Cole, project superintendent, came into
the office and said it was possible that they would be
needing some welders . Herd returned his completed ap-
plication the next day and Harvey said he had received
verbal word of some work being awarded . Harvey asked
Herd if he was Union . Herd said yes, and stated that he
had worked on some union jobs. Cole asked if his union
dues were paid up. Herd said yes. Harvey said the Com-
pany was nonunion but paid union scale. Herd said okay.
Cole requested that Herd come back on 11 July to take a
welding test.
Herd returned for the welding test on 11 July. During
the test Saum introduced himself. After the test, Saum
told Herd that his "coupon" 19 looked fine and that they
would let him know if they needed him. Saum asked if
he belonged to the union and Herd said yes. He asked
the name of Herd 's home local , and Herd advised him
that it was Local 598 (the Union herein). Saum said he
had been having some problems with the Union and that
the Union wanted to organize the Company but he was
not going to permit it. Saum said , "Your welding test
looked good and . . . I 'd like to have you but . . . I
have a problem with hiring you because you belong to
the union ." Herd said he was just as hungry as the next
man down the road , union or nonunion . Saum said he
just did not want any more problems with the Union. He
said they would look over his application and keep it in
mind . A copy was made of a prior certification Herd had
received after testing on the same procedure that cov-
ered the Respondent's job. Thereafter Respondent hired
several other welders who, at the time of Herd's test,
had not yet submitted an application for employment
with Respondent.
The contract between Respondent and the Corps of
Engineers requires that the welding be performed in ac-
cordance with a particular welding procedure. Each
complete weld is to be made with two types of welding
rod, or electrode, as follows : The initial, or root, pass or
'B A "coupon" is a section of welded pipe that is sent to a testing shop
to determine whether the weld is satisfactory.
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
weld is to be made with 5-P rod (also called 6010 rod),
having a tensile strength of 60,000 pounds per square
inch; the second, or middle, pass is to be made with 7018
rod, having a tensile strength of 72,000 pounds a square
inch; the third, final or cap, pass is also to be made with
7018 rod.2O
The Respondent maintains that the welders were dis-
charged because they did not conform their welds to this
procedure, but rather used 5-P rod on all three passes.
Moreover, according to Respondent, they made welds
that were otherwise defective for various reasons.
Tom Morgan testified that:
Q. (By Mr. Fain, Respondent's attorney) Now,
Rick Lakey never told you to use anything other
than the procedure required by the Corps, did he?
A. Mr. Lakey let it be known to every person on
the job that they could weld any way they desired
with any rod they desired in order to facilitate the
speed of the job. Numerous times the welders had
complained on that job to him about the 7018 elec-
trode being unstable.
Q. Who did you hear complain like that about
that to Rick Lakey?
A. Mr. Plumlee, myself and my brother and any-
body else that had anything to do with welding.
Q. Well, is there anyone else you can think of
that you heard talk to Rick Lakey about that?
A. No, there's not, because we were the only
ones out there that knew anything about welding.21
Q. All right, so it would just have been Mr.
Plumlee, Mr.-the other Mr. Morgan, Bob
Morgan,-
A. Uh-huh.
Q. -and yourself?
A. Yes, sir, to my knowledge.
Q. And Mr. Lakey never directed you to use a 5-
P rod for all three passes, did he?
A. Would you repeat that again?
Q. Mr. Lakey never directed you to use a 5-P
rod for all three passes; did he?
A. Mr. Lakey directed us to weld any way that
we desired in order to facilitate the job for speed.
Q. Tell us what happened during that discussion
with [Mr. Harvey]?
A. Well, simply stated, I made the comment to
Mr. Harvey that we needed an electrode-stabilizing
oven for the 7018 electrode.
Q. And what did Mr. Harvey say?
A. He mumbled something and went back in the
trailer; what it was I don't know.
Q. Were you requesting an oven?
20 The condensate pipe being welded together has a tensile strength of
60,000 pounds a square inch , which is the same as the 5-P rod , the pur-
pose of the 7018 rod , however , according to Saum , which has a greater
tensile strength , is to provide a margin of error against imperfection in
the weld to insure that the weld will be as strong as the pipe itself The
water pressure within the condensate pipe, however , is only about 30
pounds a square inch.
21 At the time of the discharge of the Morgan brothers, Muse had not
yet been brought out to the base.
A. Yes, sir, some means of stabilizing the 7018
electrode.
Q. And did you then get an oven?
A. No, sir.
Plumlee, Bob Morgan, and Tom Morgan testified that
they knew the contract specifications provided for 5-P
rod on the root pass and 7018 rod on the two subsequent
passes. However, they were experiencing "porosity"
problems when welding with the 7018 rod because they
were provided no "rod heaters" or ovenS22 in the field
to maintain the correct temperature for the 7018 rod
prior to its use. Porosity results in defective welds that
may have to be grounded out and redone, thereby slow-
ing down the work, and is caused by the absorption of
atmospheric moistures by the rod, a condition particular-
ly noticeable on cold or windy days when welding is
performed in open areas. They spoke to Rick Lakey
about the matter on various occasions and were told to
use whatever rod they wanted to use regardless of the
procedure in the specifications. The employees, all
highly qualified and experienced welders, with the ex-
ception of Muse, who had recently been certified, deter-
mined that 5-P rod on all three passes would often result
in the best weld under the prevailing circumstances.
Plumlee testified that he refused to stamp his noncon-
forming welds with an identification stamp because he
did not want to be falsely certifying that the welds were
performed in accordance with the specifications. The
record shows that any experienced inspector can readily
tell whether the cap weld was made with 5-P or 7018
rod.
Wallace Giesler, the Corps of Engineers' compliance
inspector on the project, testified as follows:
Q. (By Judge Wacknov): Let me ask, Mr.
Giesler, and we haven't been talking about this yet,
my understanding of 5-P versus 7018 is that 7018
has more strength to it, the welding rod; is that cor-
rect?
A. Well, in a general case it would probably be
true.
Q. In this particular situation of condensate pipes,
what difference did it really make whether the
second and third pass, cap pass, were 7018 or 5-P?
A. Well,-
Q. I mean, as a practical matter. I understand the
specifications may provide for it, but as a practical
matter for my own -- I'd just like to know; what
difference would it make?
A. Well, it was a-practically it probably wouldn't
make a bit of difference under the system that was
being installed there. However, it was a violation of
the contract specifications. [Emphasis added.]
22 A rod heater is a metal container with a heating source used to keep
the welding rod at a particular temperature prior to its use. There was
only one rod heater , a converted small refrigerator that Plumlee had
brought from his home, and it was inadequate and sometimes not func-
tioning. Moreover, it was located in the shop at the base and was not
portable for field use.
ADSCON, INC.
C. The Status of Hank Plumlee
Respondent maintains that Plumlee , pipefitter foreman,
is a supervisor within the meaning of the Act. Respond-
ent included Plumlee on the eligibility list in the repre-
sentation proceeding . On 13 May , Saum engaged Plum-
lee in a conversation regarding the forthcoming election
and attempted to solicit his vote. Plumlee voted in the
election without challenge.
Plumlee was the most experienced and qualified pipe-
fitter working for Respondent. He had worked for the
Respondent on several projects, and as a previous
project was coming to a close, Plumlee was made super-
intendent on that project for a brief time and for a spe-
cific purpose. He was the first pipefitter hired for the in-
stant project. As pipefitter foreman, he was paid $1 an
hour more than the other certified welders until the pay
period immediately preceding the election, when his
wages were reduced by $1 an hour.
Regarding purchasing certain equipment for the
project, Plumlee testified that at the beginning of the
project he was told by Saum to call a certain local sup-
plier and check out the prices on welding rod and a
welding machine . Plumlee obtained the information and
was told by Bob Harvey, who also occupied the position
of purchasing agent , and apparently Saum , to order the
merchandise from the local source because by the time
the items were shipped from Seattle the cost would be
about the same . Plumlee did so.
Bob Morgan and Tom Morgan were hired in January,
shortly after the project began . Plumlee testified that he
did not hire these individuals . Rather, he had been ac-
quainted with the Morgan brothers, particularly Bob,
and knew that both were experienced welders. They
asked him if there was welding work available on the
project. Plumlee gave them Respondent's phone number
and told them to talk to Saum . Plumlee also mentioned
to Saum that he knew the Morgan brothers, and said he
thought they would be "real good hands."23
Bob Morgan talked to Saum on the phone about the
job and thereafter transmitted some certification papers
to Saum . Apparently Saum directed Plumlee to hire the
Morgan brothers. About 6 January, Plumlee notified Bob
Morgan that he was hired, and about 15 January he noti-
fied Tom Morgan that he, too, should report to work.
Parish Plumlee began working for the Respondent at
the fabrication shop about February, under the supervi-
sion of Al Lakey. He had worked for the Respondent on
two previous projects for short periods of time. He testi-
fied that his father told him that Saum had said to bring
him to the fabrication shop, show him how to weld pipe
supports, and get him started .24 Thereafter, Parish
worked at the fabrication shop and Hank Plumlee
worked at the base until , sometime in March , Parish was
brought to the base as a pipefitter helper and worked on
the condensate lines with Bob Morgan . Then he was
moved into the mechanical rooms and worked with
Randy Gosseen plumbing the mechanical rooms.
2 Plumlee and other employees testified that in the construction indus-
try it is customary for employees to obtain jobs through word of mouth.
24 Al Lakey, shop manager , was not a welder and apparently was not
qualified to train Parish Plumlee to do some of the necessary work.
513
Hank Plumlee testified that, apparently in February,
Saum asked him whether he thought Parish would want
to work at the project. Plumlee said he was sure Parish
would, and Saum asked whether Parish could handle the
job of welding pipe supports. Plumlee said yes. Saum
then told him to go ahead and find out if Parish wanted
to work at the fabrication shop and to bring him out.
Saum's testimony regarding the hiring of Parish is simi-
lar, except that Saum maintains that Hank Plumlee ap-
proached Saum and asked if Parish could be hired.
Gosseen began working on 17 April. He was hired to
work at the base as a pipefitter helper. He worked inside
the mechanical rooms of the barracks, fabricating and in-
stalling the systems for the steam heat and hot water.
Gosseen testified that he had initially spoken to Plumlee
about employment . Then, on 17 April, Plumlee phoned
him and asked if he would like to begin working as a
pipefitter helper . Gosseen said yes and drove to the base
to the location where Plumlee was working , and Plumlee
accompanied him to the office trailer where he filled out
the employment forms Harvey gave him. He then went
with Plumlee back to the mechanical rooms where
Plumlee had been working , and Plumlee told him what
part of the system to work on. Plumlee told Gosseen
that he could go to look at a completed mechanical
room if he had questions about what needed to be done,
and divided the work in half so they would stay out of
each other's way.
Gosseen testified that he worked with Plumlee on me-
chanical rooms for several weeks, after which Plumlee
began working in the field, and Gosseen remained in the
mechanical rooms by himself. Several days later, Parish
Plumlee was brought out to work with Gosseen, and
then, after Parish was laid off, Kevin Rye took his place.
Gosseen trained both Rye and Parish and told them
what work to do. Gosseen was thereafter given instruc-
tions by Harvey, Rick Lakey, and Cole ; and Roger
Miller, plumbing foreman, tested some of the work that
the employees had completed in the mechanical rooms.
Gosseen asked Lakey for time off on 3 June . Hank Plum-
lee would only come by occasionally to eat lunch with
Gosseen and Parish.
Rye testified that when he first began working with
Gosseen in the mechanical rooms , Plumlee came in on
five or six occasions "to check on the work to see how
things was going, if we had any questions."
Regarding the hiring of Gosseen, Rick Lakey testified
that Gosseen had come to the jobsite on several occa-
sions and talked to Plumlee and both Morgan brothers.
Later, Plumlee told Lakey that he needed somebody to
work in the mechanical rooms. He said that Gosseen had
experience as a pipefitter and he recommended that Gos-
seen be hired . Lakey told Plumlee to go ahead and hire
him. Plumlee did not deny this testimony of Lakey.
Plumlee testified that he never recommended that any
employees be laid off, disciplined, discharged, or re-
called . Rather, all these decisions, as far as he knew,
were made by Rick Lakey . Each morning the welders,
who generally worked alone, would begin doing the
work that they had been working on the day before,
unless they were assigned different work by Lakey.
514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Plumlee did not keep the time of the welders or pipefit-
ter helpers, attend management meetings , or do any pa-
perwork. If Lakey had not already spoken to the welders
regarding their assignments , Plumlee would relay the in-
structions . Plumlee did not oversee or inspect the work
of the other employees and performed the same work as
they did virtually all the time.25
Plumlee testified that on one occasion , Plumlee asked
Muse for some assistance . Muse asked Lakey if he could
help Plumlee . Lakey said no, that Plumlee was a jour-
neyman and could do it himself. As noted above, when
Muse was brought out to the base from the fabrication
shop, he was initially told by Lakey not to have any-
thing to do with Plumlee , and on the day of the election
Lakey gave Muse a radio so that he could call Lakey if
he had any questions about the work.
Saum testified that prior to the beginning of the
project he told Plumlee there would be a supervisory job
as welding foreman open for him and that he was going
to leave the responsibility of hiring welders to Plumlee.
Plumlee said he knew a couple of welders and Saum
said , "Well, I'll leave that responsibility to you. When
the job requires it let's bring the guys in . Plumlee denies
this conversation.
D. Analysis and Conclusions
1. The status of Hank Plumlee
Respondent maintains that Hank Plumlee is a supervi-
sor within the meaning of the Act. It is clear that wheth-
er Plumlee possessed or exercised any supervisory au-
thority prior to the advent of the Union, he neither pos-
sessed nor exercised any such authority after about mid-
May.
By 15 May three of the four employees Plumlee had
called to work , pursuant to the instructions of Saum or
Rick Lakey, had been laid off or discharged,26 and only
Gosseen remained . Plumlee had received no prior notice
that these members of his crew were to be discharged,
nor had he been consulted regarding their replacements.
Rye replaced Parish Plumlee in the mechanical rooms,
and was trained by Gosseen. I find that Plumlee did not
direct the work of Gosseen or Rye and had very little
daily contact with them . 27 When Muse was transferred
from the fabrication shop to the base he was told by
Rick Lakey to stay away from Plumlee and thereafter
Lakey , who spent more time in the field after 12 May
when Cole was hired as superintendent, inspected Muse's
work until he apparently felt that Muse was capable of
working on his own . Muse and Plumlee worked sepa-
rately and Plumlee did not inspect his work.
Thus, the record is devoid of any evidence of supervi-
sory authority exercised by Plumlee. Instead , Plumlee
did not even have the authority to direct Muse to assist
him, as Lakey denied Plumlee 's request in this regard;
2 1 credit Plumlee's testimony and also the testimony of Bob Morgan
and Tom Morgan , who corroborated the foregoing testimony of Plumlee
26 Tom Morgan, Bob Morgan , and Parish Plumlee
27 Although Rye testified that Plumlee came to check on work in the
mechanical rooms shortly after 16 May, this was apparently of short du-
ration Moreover, this is not determinative of supervisory authority.
Gerber Co., 270 NLRB 1235, 1237-1238 ( 1984).
and Muse went to Lakey, not Plumlee, for time off. Fur-
ther , Saum solicited Plumlee 's vote in the forthcoming
election ; Plumlee 's foreman 's pay of $1 an hour was
taken away from him prior to the election ; and he voted
without challenge.
On the basis of the foregoing , I find that whatever
Plumlee's prior status , he was clearly not a supervisor on
and following 13 May , the date Saum solicited him to
vote against the Union.
2. The discharges
On 2 May, Superintendent Lakey told Hank Plumlee
that Lakey was going to discharge Don Fox that day be-
cause of his suspected union activity. Fox was, in fact,
laid off that day and was told by his foreman, Roger
Miller, that it would only be for a week or so. However,
Fox was not recalled until 8 July, some 2 months later. I
credit the testimony of Plumlee and Fox.
Respondent maintains that Fox's layoff resulted from a
quarantine of certain barracks in which Fox was work-
ing. However, a Corps of Engineers' quality assurance
report shows that on 2 May the asbestos problem was no
longer precluding work in the barracks. Moreover,
Roger Miller testified that the building in which Fox had
been working on 2 May, and still another building yet to
be started, was not affected by the quarantine.
I therefore find that the evidence does not support Re-
spondent's alleged reasons for the layoff of Fox, and that
Fox was laid off for the reason that Lakey stated to
Plumlee, in violation of Section 8(a)(3) of the Act.
After being recalled on 8 July to Roger Miller's
plumbing crew, Fox was again discharged on 24 July.
Respondent maintains in its brief that Fox was dis-
charged because of "performance problems."
Rick Lakey testified that Fox was discharged because:
It was another complaint, no hardhats, no shoes,
Mr. Fox was constantly out of his area, no hardhat,
completely two buildings away from his area. I fi-
nally had enough of it, I went up and told Roger to
fire him.
Superintendent Cole testified that Roger Miller told
him that Fox was not performing and should not have
been called back and , therefore , Cole told Miller to dis-
charge him . Cole, however , made out the layoff slip,
which indicates that Fox was being let go because of
lack of work.
Miller testified that there were only about four or five
more buildings that needed plumbing and Cole told him
that he should cut back on his crew . Therefore , Fox was
laid off. When asked whether there was any problem
with Fox's work, Miller testified , "No, not really." He
then testified that when he was discussing layoffs with
Cole, something was mentioned about a productivity
problem with Fox "but there was nothing-no big to-do
about it."
The reasons for the second layoff of Fox given by var-
ious managers and supervisors are contradictory. On the
one hand Lakey and Cole maintain that Fox was dis-
charged because of problems with his work. Miller,
Fox's immediate supervisor, however , not only does not
ADSCON, INC.
corroborate this, but maintains that Fox was laid off be-
cause , even though there was more work to be done, the
Respondent was nearing the end of that phase of the
project.
The General Counsel maintains that the conflicting
reasons for Fox's second layoff, coupled with the forego-
ing finding that Fox's earlier layoff was unlawfully moti-
vated, mandates the conclusion that Fox's second layoff
was also violative of Section 8(a)(3) of the Act. I agree
and so find.
Tom Morgan was discharged on the same day as Fox,
2 May. Morgan was told by Lakey that his temporary
layoff would last for "one week and one week only."
Plumlee testified similarly . I credit Morgan and Plumlee.
Respondent maintains that Morgan , who had been laid
off on two prior occasions , had been hired only to per-
form prefab work and when this work had been com-
pleted Morgan was permanently laid off. Indeed, Lakey
maintains that Plumlee acknowledged that Plumlee was
planning on permanently laying off Morgan for that very
reason . Plumlee denied this and testified that there was
abundant welding work to be done on and subsequent to
the day Morgan was discharged. I credit Plumlee.
Although Lakey told Plumlee on 1 May that he did
not believe that Tom Morgan would favor the Union,
Saum told Plumlee , on 13 May, that he knew the
Morgan brothers were against him from the start and
"were locked into the union tight as hell." That remark
of Saum 's, coupled with the Respondent 's discredited ra-
tionale for discharging Morgan on the very day that, it
has been found, Respondent discharged Fox because of
his suspected union activity, mandates the conclusion
that Morgan's discharge was similarly motivated. I so
find.
On 13 May, as noted, Saum advised Plumlee of Saum's
disregard for the Morgan brothers and also said he was
going to start playing hardball and was going to send
Bob Morgan to the fabrication shop on Rudkin Road.
Meanwhile, at the shop, Al Lakey had told Muse, whom
I credit, that they wanted to bring Bob Morgan to the
shop so that Muse could "piss him off enough to get him
to quit."
This plan, however, did not materialize and Bob
Morgan was laid off on 15 May allegedly because, as
Saum testified , work on the project had been halted by
the Corps of Engineers . Also, on the same date, Parish
Plumlee , a pipefitter helper, was laid off, as were two la-
borers.
The credible evidence establishes , contrary to Saum's
testimony, that the work Bob Morgan and Plumlee had
been performing had not been suspended . In fact, the
contemporaneous letter from the Corps of Engineers
states that the suspension involved only the "removal of
insulation on the exterior steam line," which work con-
stituted only a relatively minor part of the overall
project, and that "[A]11 other contract work may contin-
ue." Moreover, Plumlee credibly testified, contrary to
Saum, that the work on the condensate line was not sus-
pended and that it continued thereafter; and Muse credi-
bly testified that the fabrication of pipe supports contin-
ued throughout the time of this alleged 2-week shut-
down. Further, the two laborers discharged on 15 May
515
were replaced within a week by two new hires who con-
tinued working in the field on the installation of pipe
supports.28
Parish Plumlee was working in the mechanical rooms
of the barracks with Gosseen at the time of his layoff. It
is clear that this work was independent of any outside
work on the steam or condensate line, and continued
after Parish's discharge , as Parish was replaced by a
plumbing employee , Kevin Rye.
Clearly, the Respondent seized on the Corps of Engi-
neers' steam line suspension order to fabricate a rationale
for the dismissal of these employees , and the credible
record evidence shows that the suspension of the steam
line work had no impact on the work that Bob Morgan
and Parish Plumlee were performing.
Respondent maintains that there is no record evidence
that Respondent knew or suspected that Parish was in
favor of the Union. Although Saum had explicitly ex-
pressed his animus toward Bob Morgan and had even
concocted a scenario for getting him to quit , it is clear
that the Respondent had been attempting to identify all
the union sympathizers and Saum stated that he had spies
at one union meeting . Parish had attended a union meet-
ing and signed a union authorization card prior to his
discharge . Moreover, there was no valid reason given for
his discharge, and he was not offered either of the labor-
er jobs that were available the following week even
though on 8 July, when Parish was recalled, he was put
to work as a laborer on the laborers ' crew, thus showing
that Respondent had no reservations about recalling
Parish as a laborer rather than as a pipefitter helper.29
For the foregoing reasons I conclude that the 15 May
layoffs of Bob Morgan and Parish Plumlee were discri-
minatorily motivated in violation of Section 8(a)(3) of
the Act.
Gosseen was discharged on 1 July, the day following
the election, purportedly for pilfering property. The
property that Gosseen was accused of allegedly stealing
was scrap iron that had been removed from the mechani-
cal rooms during the demolition stage. Respondent was
selling this scrap for 2 cents a pound to a local salvage
dealer.
I credit Gosseen and find that he had arrived at the
jobsite early because he was apprehensive about his con-
tinued employment because of the events the day before,
and that he was attempting to locate valves and strainers
that were to be reused in the mechanical rooms.90
Even though Gosseen's truck was searched by Saum
and the military police and nothing was found, Saum
nevertheless allegedly determined that Gosseen had
indeed intended to pilfer something , and therefore dis-
missed him . I do not credit Saum and find that he dis-
charged Gosseen in retaliation for Gosseen 's suspected
28 1 agree with the General Counsel's position that the layoff of the
two laborers on 15 May was contrived "camouflage " to mask the true
reason for the layoff of Bob Morgan and Parish Plumlee.
29 Parish was thereafter discharged again for excessive absenteeism, ap-
parently due to injury he sustained on the job, and there is no complaint
allegation that this final discharge is violative of the Act
30 Various employees testified that these items , which were to be
reused , had sometimes been discarded with the rest of the scrap and had
to be obtained from the salvage pile
516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
union activity. Saum 's virtually contemporaneous remark
to Plumlee , whom I credit, that Gosseen was Plumlee's
"fucking union buddy" and was going to be fired, pro-
vides clear evidence of Saum' s true motivation . There-
fore, I conclude that Gosseen was discharged in viola-
tion of Section 8(a)(3) of the Act, as alleged.
As noted, Saum told Plumlee that his "fucking union
buddy" had been caught stealing and that Saum had
Gosseen at the MP station and was going to press
charges against him . Immediately following this, as
Plumlee was about to begin work, Saum told him "Yeah,
get out there and bust your ass and . . . if you don't
think you can handle the heat of that . . . just hit the
fucking road." Plumlee told Saum not to "hard ass" him
and to fire him or get off his back. He then indicated
that he was quitting by laying the keys to Respondent's
pickup on the desk which, as evidenced by Saum's re-
peated questioning of whether Plumlee was quitting, was
just what Saum had intended . Shortly thereafter, Lakey
told Muse that Gosseen had been caught stealing and
had been thrown in jail and that "We got rid of [Plum-
lee], too."
Respondent maintains that this confrontation did not
constitute a constructive discharge , citing K & S Circuits,
255 NLRB 1270, 1295 (1981). Contrary to Respondent's
assertions , it is clear that the case that Respondent cites
constitutes clear precedent for the determination, which
I make , that the new , albeit unspecified, working condi-
tions imposed on Plumlee were intended to be so diffi-
cult or unpleasant as to cause him to resign , and that
such conditions were imposed because of Plumlee's
union activity. I therefore find that Plumlee was con-
structively discharged in violation of Section 8(a)(3) of
the Act.
Muse was suspended by Lakey on 1 July, allegedly for
making unacceptable welds, and was permitted to take a
cut in pay and return to work at the fabrication shop.
When Muse arrived at the shop, he made the rhetorical
statement to Al Lakey that the Respondent "was going
to play hardball." Al Lakey agreed, stating "You're god-
damn right . You guys started this union bullshit." Muse
denied that he started it and Lakey said , "Well, you're
involved in it and now you're going to pay for it." I
credit Muse's testimony . Further, I do not credit the tes-
timony of Al Lakey regarding Muse's alleged insubordi-
nate conduct at the fabrication shop. Thereafter, on the
following day , Muse was laid off allegedly for lack of
work.
I find that Muse was, in effect, discharged by Rick
Lakey on 1 July at the base because of his suspected
union activity . The welds pointed out to Muse on 1 July,
which allegedly resulted in his demotion to the fabrica-
tion shop, were welds that he had made some 2 weeks
earlier . Moreover, Muse had been welding steadily for a
month prior to his discharge and Rick Lakey, who had
inspected his work, had not found it unacceptable . Final-
ly, when Muse arrived at the fabrication shop, he was
told in no uncertain terms by Al Lakey, who had spoken
to Rick Lakey shortly before, that Muse's demotion to
the shop was motivated by his union activity.
I find that the 1 July removal of Muse as a welder was
discriminatorily motivated in violation of Section 8(a)(3)
of the Act. Moreover, I find that the 2 July layoff was
similarly unlawful , as credible record evidence does not
show that there was no further work for Muse at the
fabrication shop.
I credit the testimony of Dean Herd , an applicant for
employment , and find that on 11 July , after taking a
welding test , he acknowledged to Saum that he was a
member of the Union . Thereupon , Saum told Herd that
his welding was good and he would like to hire Herd,
but he just did not want any more problems with the
Union . Herd was not hired . Thereafter , the Respondent
hired other welders who, at the time of Herd 's conversa-
tion with Saum , had not yet applied for employment.
Therefore , I find that Respondent 's failure to hire Herd
was discriminatorily motivated in violation of Section
8(a)(3) of the Act. Young Hinkle Corp., 244 NLRB 264
(1979).
3. The noncode welding
Respondent maintains that even if the four certified
welders, Bob Morgan , Tom Morgan, Jim Muse, and
Hank Plumlee were unlawfully discharged, nevertheless
they would have been discharged for a legitimate reason
because of their admitted failure to follow the proper
welding procedure and because of various defective
welds that were subsequently discovered. I find this de-
fense to be without merit . Hank Plumlee and the Morgan
brothers credibly testified that they had been told by
Lakey that it was permissible to use 5-P rod in place of
7018 rod if they desired, and this instruction was relayed
to Muse by Plumlee.91 Moreover, I credit the employ-
ees' testimony that the primary reason for using 5-P rod
in place of 7018 rod was because , after advising Lakey
and Harvey of the porosity problem with 7018 rod, the
Respondent failed to provide them with rod ovens in the
field. I discredit Lakey's and Harvey 's denials of these
conversations, and find that indeed there were no rod
ovens provided to the employees in the field until after
they were discharged and new replacement welders
were hired.
I do not credit the assertions of Saum , Bob Harvey, or
Rick Lakey that the welding of Plumlee and the Morgan
brothers was initially so exceptional that Respondent
never thereafter inspected the work until immediately
prior to the election .32 The welding work was readily
observable and, indeed , it was Bob Harvey's admitted
primary responsibility as Respondent 's quality control
representative, who was on the job at all times, to insure
to the Corps of Engineers that the work was in conform-
ity with the contract. Harvey and Lakey testified that,
91 It is quite reasonable that Lakey would have so instructed the em-
ployees, as Giesler, the Corps of Engineers' representative, testified that
the use of one rod or the other "probably wouldn 't make a bit of differ-
ence "
a= Bob Harvey, quality control representative , testified that "I was so
impressed with these men's welds that I didn 't watch it all that close I
never seen better welding in my life " Rick Lakey said that "all three
was damn good welders ." Regarding Plumlee 's welding, Saum testified
that the work was "as good as I've seen The guy was an artist," and
when asked how the noncode welds could have gone undetected, Saum
said, "I don 't know I don't know I 'd still like an answer to that . it's
a mystery."
ADSCON, INC.
although the noncode welding was discovered several
days prior to the election and was a serious violation of
the contract specifications, the matter was not reported
to the Corps of Engineers because Saum did not want
anything to affect the 30 June election . This contention,
regarding which the Respondent did not elaborate by
way of supportive explanation , is nonsensical and prepos-
terous, particularly in light of the fact that Respondent,
prior to the election , threatened the employees with dis-
charge should they vote for the Union.
I credit the testimony of the employees , detailed
above, and find that they endeavored to make the best
possible welds under the prevailing field conditions and
at all times were following the instructions of Lakey.
Based on the foregoing, I find the Respondent's argu-
ment that the employees are not entitled to reinstatement
to be without merit . The Respondent has adduced no
credible evidence that the employees did something im-
proper by following Lakey's instruction , or otherwise
performed defective welding that would justify their dis-
charge.33
4. The 8(a)(1) violations
As discussed above , I concluded that it was unneces-
sary to determine whether Hank Plumlee was a supervi-
sor prior to 13 May , on which date Saum solicited Plum-
lee's vote . On 13 May and thereafter , however, I found
that Plumlee was not a supervisor within the meaning of
the Act.
I credit Plumlee and find that on 13 May , Saum inter-
rogated him about the union activity of other employees.
Saum told him , in effect , that he was going to retaliate
against Bob Morgan because of his involvement with the
Union; that Saum would prolong negotiations and would
not sign a contract ; that if the Union got in, wages
would go down ; and that the employees would be dis-
charged.
I credit Muse and find that in mid-May, Al Lakey in-
terrogated Muse and another employee regarding their
union activity , stated that if the Union came in , the fabri-
cation shop employees would not have a job because the
work would be contracted out, and advised Muse of
plans to get rid of Bob Morgan because of his union ac-
tivity . Also, on 1 June and thereafter, Rick Lakey told
Muse to stay away from Plumlee, clearly because of
Plumlee 's involvement with the Union, as Saum later ex-
plained to Muse.
I credit Muse 's testimony regarding the 19 June em-
ployee meeting and find that Saum told the employees
that he knew of the union meeting the night before "be-
cause his spies had let him know ," thus creating the im-
pression of surveillance of employees' union activity. I
as Respondent's extensive evidence concerning the identification and
alleged repairs of some 42 welds from 13 August to 6 November is con-
tradicted by record testimony. Thus, for example , Fritz Flowers, called
by the General Counsel, who was assigned to repair only one weld, cre-
dibly testified that he repaired that single weld on 18 November , and the
repair took less than an hour. Respondent 's repair log shows, however,
that Flowers spent 13 hours that day repairing four welds. I do not credit
any of Respondent 's evidence regarding the alleged repair of any of the
welds . It is significant that none of the other welders who allegedly made
the other 41 repairs were called as witnesses by Respondent.
517
find that Saum also said he could stall negotiations for 2
years, that he was withholding raises because of the up-
coming election , and that he heard Muse was going to
vote for the Union.
Also at the aforementioned meeting , I find that Al
Lakey told the employees that the fabrication shop
would be closed if the Union won the election. More-
over, I find that immediately prior to the election Al
Lakey told the employees that if they voted for the
Union they would be out of a job. Contrary to Respond-
ent's contentions, I find that these statements of Lakey
constituted direct threats rather than lawful predictions
based solely on economic considerations.
Immediately following the election, I find that Rick
Lakey imposed more onerous working conditions on
Gosseen and Rye by changing their actual working
hours, disallowing coffee and soda pop on the job, re-
quiring them to remain in their work area , and requiring
them to increase production .Similarly, new and more on-
erous working conditions were imposed on Muse by
Rick Lakey at the same time.34
I find that on 1 July, Saum threatened Gosseen with
arrest in retaliation for his union activity and, for the
same reason , Al Lakey threatened Muse with more oner-
ous working conditions.
I find that on 2 July, Saum , for a discriminatory
reason, threatened to have Plumlee arrested when he re-
turned certain items to Respondent, interrogated Plumlee
about his union activity , told Plumlee he would never
work another nonunion job, and that the Respondent
would never sign a contract.
I credit Herd's testimony and find that on 11 July,
Saum told Herd that he was not hiring Herd , a union
member, because he did not want any more problems
with the Union.
On 28 July, Saum told Muse that Rick Lakey had re-
taliated against Muse because Lakey thought Muse was
going to vote for the Union as he had been observed as-
sociating with Hank Plumlee.
The foregoing findings of 8(a)( 1) and (3) violations are
based on the credited testimony of the named employees.
I do not credit the testimony of Saum , Rick Lakey, and
Al Lakey to the extent that their testimony differs with
that of Hank Plumlee , Gosseen, Muse, and Herd, who
impressed me as forthright and reliable witnesses with
accurate recollections of the various events and conver-
sations.
E. The Representation Proceeding
The Union challenged the ballots of John Sphuler,
Larry Barnhart , Kevin Rye, and Al Lakey. The Board
agent challenged the ballots of Donald Fox, Lloyd Par-
rish Plumlee, Earl (Tom) Morgan , and Bobby Morgan.
At the hearing it was agreed that the challenge to Al
Lakey's ballot should be sustained as he is a supervisor. I
shall also sustain the challenge to the ballot of Larry
Barnhart, laborer foreman, as laborers are not included
within the approximate unit and there is no evidence that
34 Such new working conditions also constitute violation of Section
8(ax3) of the Act.
518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent performed any unit work. The challenges to
the ballots of John Sphuler and Kevin Rye are over-
ruled, as the Union presented no evidence that these two
employees were not eligible unit employees.
The challenge to the ballots of Donald Fox, Lloyd
Parish Plumlee, Earl (Tom) Morgan, and Bobby Morgan
are overruled, as the record shows that they are eligible
unit employees who were unlawfully discharged prior to
the election.
Respondent offered evidence in support of only one of
its election objections. The objection is as follows:
2. The Union, by and through its agents, officials,
representatives, employees and/or supporters, un-
lawfully promised to waive or reduce substantially
initiation fees for employees who joined the union
prior to the election.
It was stipulated that the testimony of Union Business
Agent Waldbauer, who was present in the hearing room,
would be as follows: that at one, or possibly two union
meetings Waldbauer told the employees that the Union
had a special organizing initiation fee, and that members
of the bargaining unit could join the Union for $200 as
long as they join the Union within 8 days of when a con-
tract was signed between the Union and Adscon; and
further, that Waldbauer said nothing else about organiz-
ing fees.
Several employees testified on this matter. I credit the
testimony of Hank Plumlee and Don Fox, who specifi-
cally recalled that Business Agent Waldbauer stated that
the offer for reduced initiation fees extended beyond the
election. Parish Plumlee could not recall Waldbauer es-
tablishing a time limit for reduced initiation fees, and ap-
parently thought the offer was for an indefinite time.
Tom Morgan's testimony on this matter indicates that he
had only a vague recollection of Waldbauer's actual
statements.
On the basis of the foregoing I find that the Respond-
ent has not sustained its burden of proof and recommend
that this election objection, 96 as well as the other elec-
tion objections, on which no evidence was offered,
should be overruled.
It is also recommended that this matter be remanded
by the Board to the Regional Director for Region 19, di-
recting that the ballots of John Sphuler, Kevin Rye,
Donald Fox, Lloyd Parish Plumlee, Earl (Tom) Morgan,
and Bobby Morgan be opened and counted, and that a
revised tally of ballots be prepared and served on the
parties. If the revised tally reveals that the Petitioner has
received a majority of the valid ballots cast, the Regional
Director shall issue a certification of representative. If
the revised tally shows that the Petitioner has not re-
ceived a majority of the valid ballots cast, the Regional
Director shall set aside the election results, dismiss the
petition, and vacate the proceedings.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (3) of the
Act.
4. The unfair labor practices described above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Because I have found that the Respondent has en-
gaged in certain unfair labor practices within the mean-
ing of Section 8(a)(1) and (3) of the Act, I shall recom-
mend to the Board that the Respondent be ordered to
cease and desist from engaging in such unfair labor prac-
tices and to take affirmative action designed to effectuate
the policies of the Act, including the posting of an ap-
propriate notice attached as "Appendix," and the mailing
of the notices to all employees.
I shall recommend to the Board that the Respondent
be ordered to offer Hank Plumlee, Bob Morgan, Earl
(Tom) Morgan, Jim Muse , Don Fox, and Randy Gosseen
immediate and full reinstatement to their former jobs or,
if such jobs no longer exist, to substantially equivalent
positions of employment, without the loss of their senior-
ity or any other rights and privileges . I shall further rec-
ommend that Respondent hire Dean Herd to the position
for which he would have been hired, with seniority and
other benefits beginning on the date he would have been
hired.
I shall further recommend to the Board that the Re-
spondent be ordered to make whole the aforementioned
employees , and also Parish Plumlee, for any loss of earn-
ings and other benefits resulting from the discrimination
against them . Backpay is to be computed in accordance
with the Board 's decision in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest on such backpay to be
computed in accordance with the Board 's decision in
New Horizons for the Retarded, 283 NLRB 1173 (1987.)36
In accordance with the Board's decision in Sterling
Sugars, 261 NLRB 472 (1982), I shall recommend to the
Board that an expunction remedy be included in the
Order.
The General Counsel has requested that a visitatorial
clause be included in the Order in this case . This request
should appropriately be addressed to the Board.
[Recommended Order omitted from publication.]
3e Under New Horizons, interest is computed at the "short -term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26 U.S.C. § 6621. Interest accrued before 1 January 1987 (the effective
as See Savair Mfg. Co., 414 U.S 270 (1973 ). Cf. Crane Co ., 225 NLRB date of the amendment) shall be computed as in Florida Steel Corp., 231
657 (1976). NLRB 651 (1977)